Joseph Leblanc v. Xstrata Nickel, 2011 HRTO 1109

Human Rights Tribunal of Ontario

B E T W E E N:

Joseph Leblanc Applicant

-and-

Xstrata Nickel Respondent

INTERIM decision

Adjudicator: Ena Chadha Date: June 8, 2011 Citation: 2011 HRTO 1109 Indexed as: Leblanc v. Xstrata Nickel

1The applicant filed an Application on August 17, 2010, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability. The applicant alleges that he was discriminated against because he was not recalled for work because he had sustained a workplace injury before he was laid off.

2The Application indicates that the applicant has a grievance in progress and a copy of the grievance letter, dated July 23, 2010, was attached to the Application.

3On March 29, 2011, the Tribunal issued a Notice of Intent to Defer pending the resolution of another legal proceeding dealing with the subject matter of the Application pursuant to Rule 14 of the Tribunal’s Rules of Procedure. The Tribunal invited the applicant, the respondent, and the applicant’s union (as an affected party) to file submissions by April 28, 2011, as to why consideration of the Application should or should not be deferred.

4No submissions were received from the parties, nor the affected party.

DECISION

5The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

6There appears to be significant overlap between the facts and issues in the Application and the outstanding grievance. The main allegations in the Application pertain to the applicant’s concerns that he was bypassed on the recall list because he sustained an injury prior to lay-off. The applicant seeks lost wages and to be reinstated. The July 2010 grievance alleges that the respondent employer’s conduct is contrary to the Human Rights Code and seeks that the applicant be recalled to work. As such, the subject matter of the grievance is the same as the Application and both seek similar remedies.

7The Application indicates that the grievance is still in progress. The Application does not identify any particular factors which would cause the Tribunal to depart from its normal approach and no submissions were received from the applicant or his union. In these circumstances, deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the applicant’s grievance.

8The Application will therefore be deferred pending the completion of the grievance process. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.

9I am not seized of this matter.